THE PEOPLE v. CHARLES ESTER (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

A jury convicted Charles H. Ester (defendant) of assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1)) ¹ and carrying a concealed dirk or dagger (§ 12020, subd. (a)(4)).   The jury found that defendant had suffered three prior convictions of serious or violent felonies within the meaning of section 1170.12, subdivisions (a) through (d), and section 667, subdivisions (b) through (i).   The jury also found that defendant had suffered three prior convictions of serious felonies under section 667, subdivision (a)(1) and four prior prison terms within the meaning of section 667.5, subdivision (b).

After denying defendant's Romero ² motion, the trial court sentenced defendant to a term of 40 years to life.   In count 1, the trial court imposed a term of 25 years to life under section 1170.12, subdivisions (a) through (d), and section 667, subdivisions (b) through (i).   The trial court added five years for each of the three prior convictions for serious felonies pursuant to section 667, subdivision (a).   The trial court stayed a two-year sentence in count 2 under section 654.

FACTS

On December 2, 2008, as Laporsha Manning (Manning) approached a bus stop near the intersection of Century Boulevard and Western Avenue in Los Angeles, she saw defendant sitting on a bench at the stop.   Manning sat down next to defendant.   There were other people standing and waiting for the bus nearby.   Defendant had his head down and looked as if he were sleeping.   After about five minutes, he got up and seemed to be looking for something.   He kept looking at the ground and checking his pockets.   He went behind the bench, and Manning looked over her shoulder at defendant.   She believed he was looking in her purse on her lap.   Manning saw that defendant was looking at her as if she had what he was looking for.

Defendant came around to the front of the bench, dug down towards his waistband, and pulled out a knife.   He put the point of the knife to Manning's chest and said, “Where's my mother fucking cigarettes.”   He said this about three times, and Manning held up her hands and screamed, “I don't have any cigarettes, I don't smoke cigarettes.”   Defendant began to get angry.   Manning told defendant she would give him $5 to buy some cigarettes.

The people at the nearby bus stop heard Manning screaming, and a woman began calling for help on her cell phone.   When the woman said she was calling 911, defendant began to walk down Century Boulevard.   Manning was frightened and ran to a nearby park where there was a soccer game and more people around.   Police arrived and Manning flagged them down.   She told them the direction in which defendant was walking, and she saw the police stop him.   Manning's aunt arrived, and they drove to the scene of the detention.   Manning identified defendant again and she identified the knife defendant used when police showed it to her.

Officer Manuel Esqueda responded to the call.   He found the suspect walking eastbound on Century Boulevard.   Officer Esqueda felt a large knife inside defendant's left jacket sleeve and removed it.   After advising defendant of his Miranda ³ rights at the police station, Officer Esqueda asked defendant what happened.   Defendant said he had “just asked that girl for [his] cigarettes.”   He said, “I didn't swing my knife at her.”

The prosecution introduced a recording and transcript of a 911 call that was made at 8:04 p.m. on December 2, 2008.   The caller stated that there was a man armed with a knife and threatening people on the corner of Century Boulevard and Western Avenue.

I. Relevant Authority

We review the trial court's ruling for abuse of discretion.  (People v. Williams (1998) 17 Cal.4th 148, 162 (Williams );  Romero, supra, 13 Cal.4th at p. 530.)   The burden is on the party attacking the sentence to establish that the sentencing decision was irrational or arbitrary.  (People v. Romero (2002) 99 Cal.App.4th 1418, 1434;  People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)  “It is not enough to show that reasonable people might disagree about whether to strike one or more of [a defendant's] prior convictions.   Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance.”  (People v. Myers, supra, at p. 310.)

A court's power to dismiss a prior conviction is to be limited by the concept that the dismissal should be in the “ ‘ “furtherance of justice.” ’ ”   (Romero, supra, 13 Cal.4th at p. 530.)   According to Williams, in order to “render Penal Code section 1385(a)'s concept of ‘furtherance of justice’ somewhat more determinate,” justice should be sought within the “interstices” of the particular sentencing scheme, because the scheme itself suggests its spirit.  (Williams, supra, 17 Cal.4th at p. 160.)   This search must be “informed by generally applicable sentencing principles” relating to matters such as the nature of the current felonies, the defendant's prior convictions, and his “background, character, and prospects,” which are intrinsic to the scheme.  (Id. at pp. 160, 161.)   The court cautioned that the standard for review of an exercise of discretion is “deferential,” although not “empty,” requiring the reviewing court to determine whether a ruling exceeds the bounds of reason under the law and relevant facts.  (Id. at p. 162.)

II. No Abuse of Discretion

The jury found that defendant had been convicted of robbery on September 10, 1976 (§ 211);  of forcible rape on June 23, 1980 (§ 261, subd. (a)(2));  of voluntary manslaughter on February 6, 1989 (§ 192, subd. (a));  and of failure to register as a sex offender on March 22, 2000 (§ 290).   In all four cases, the jury found that defendant served a term in state prison for the offense, and that he did not remain free of prison custody for a period of five years after the conclusion of his prison terms.   The court found that defendant was the person who suffered the convictions.

The trial court began the sentencing hearing by stating it had read defendant's Romero motion and the People's opposition.   The trial court heard argument, during which defense counsel pointed out that defendant was 52 years old and asked the court to strike two of the strikes.   Defendant would still have one strike and three prior serious felony convictions as well as the conviction in the second count.   Defense counsel thus proposed a total sentence of 24 years and eight months.

The trial court declined to accept defense counsel's proposal.   The court stated that, under Williams, it must consider the nature and circumstances of the present offense, of the prior offenses, and the particulars of defendant's background, character, and prospects.   The trial court noted that the current offense was a violent one involving a very large knife.   Manning was a woman of only teenage years and was sitting alone at a bus stop in the dark when defendant threatened her and pointed the end of the knife at her chest.   Although defendant did not cut Manning, she was very frightened.

The trial court stated that the facts surrounding defendant's prior convictions were of great concern.   In the September 1976 robbery, defendant and four other individuals dragged a woman into an alley.   Defendant put a knife against her rib cage and another perpetrator punched her in the stomach and threatened to kill her if she screamed.   They took the money the woman had in her hand.   Perhaps because of defendant's youth (he was 19 at the time), he was placed on probation.⁴  His performance on probation was not good.   In 1979 he was arrested for assault with a deadly weapon.   In that case, the probation department reported that defendant entered the home of a female and knocked her to the floor.   He then jumped on her head and kicked her until she lost consciousness.   For some reason, this was charged as a misdemeanor and defendant received 60 days in county jail.   In June 1980, defendant was sentenced to seven years for forcible rape.   The charges originally included forced oral copulation, kidnapping, and assault with intent to commit murder.   Defendant admitted to using a sword in the commission of the offense.   In January 1981, defendant was convicted of his third strike offense, voluntary manslaughter.   The facts showed that defendant and another man fought over a bottle of wine.   Defendant left and returned with a metal pipe and hit the man in the head.   When the man fell to the ground, defendant continued to beat him on the head.   Defendant received a sentence of 13 years and was paroled in August 1985.   In 1999, defendant was convicted of failing to register as a sex offender and sentenced to prison for six years.   In March 2007, he was arrested for assault with a deadly weapon, and the case was treated as a parole violation rather than a new filing.   After committing some misdemeanors, defendant committed the instant offenses.

The trial court also noted that the People's submission showed that defendant's criminal history began when he was approximately 15 years old and was arrested for a marijuana case.   As a juvenile he was arrested twice for robbery, once for assault with a deadly weapon, and another time for a marijuana charge.   His arrests as an adult included the following:  in 1975, attempted robbery and bribing a witness;  in 1976, assault with a deadly weapon, robbery, and murder, the latter of which was apparently a case rejected by the district attorney.   In 1976, appellant was also arrested for suspicion of robbery, which became his first strike conviction.

The trial court acknowledged that defendant had experienced chronic substance abuse and some mental health issues.   He had been sent to Patton hospital approximately 22 years before.   There had been no insanity plea in the instant case, however.   Defendant had behaved appropriately and had cooperated with counsel during the trial.   The trial court observed that, although defendant may have had mental health issues in the past, he was before the court as someone who had been committing crimes since the age of 15, at least four of which were very violent.

Addressing defendant's prospects, the trial court stated, “This is not a situation where someone committed a strike or even two strikes long ago and had been a law abiding person and they have taken some kind of vocation training, they have a supportive family and they have a plan of what they're going to do.   This is an individual who every time-he did successfully complete parole on the 290, but as the People point out just a matter of months later picked up this case in which he threatened a young woman with a knife at a bus stop.   So it seems to me, applying all three of those factors, that it would not be an appropriate exercise of the court's discretion to strike any of the strikes.   I suppose I could strike the 1976 strike based on age, but I don't-you know, there was a fairly steady pattern as I just outlined at some length, and I think this is a third case in any event.”

We believe the record shows clearly that the trial court properly considered the “particulars of [defendant's] background, character, and prospects” (Williams, supra, 17 Cal.4th at p. 161) as well as the circumstances of the current offense in denying defendant's motion.   The trial court fully described defendant's criminal history and astutely evaluated his prospects.   The record demonstrates that the trial court was not incorrect in determining that defendant falls within the spirit of the Three Strikes law.

In making a discretionary decision, a court abuses its discretion when its decision “ ‘falls outside the bounds of reason’ under the applicable law and the relevant facts․”  (Williams, supra, 17 Cal.4th at p. 162.)   Here, we cannot say that the court's assessment of defendant's background, character, and prospects was arbitrary or capricious.   As emphasized in People v. Garcia (1999) 20 Cal.4th 490, when deciding whether to strike prior convictions under section 1385, the trial court must consider not only the constitutional rights of the defendant, but also the “ ‘ “ ‘interests of society represented by the People ․” ’ ” '  (Garcia, at pp. 497-498.)   The court fully complied with section 1385 and the California Supreme Court's holding in Romero and acted as a “ ‘reasonable judge.’ ”   (Williams, supra, at p. 159, quoting Romero, supra, 13 Cal.4th at p. 531.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

CHAVEZ

We concur:

FOOTNOTES

FN1.  All further statutory references are to the Penal Code unless otherwise indicated..  FN1.  All further statutory references are to the Penal Code unless otherwise indicated.

FN2. People v. Superior Court (Romero ) (1996) 13 Cal.4th 497 (Romero )..  FN2. People v. Superior Court (Romero ) (1996) 13 Cal.4th 497 (Romero ).

FN3. Miranda v. Arizona (1966) 384 U.S. 436..  FN3. Miranda v. Arizona (1966) 384 U.S. 436.

FN4. The probation report states that defendant was born on May 28, 1957..  FN4. The probation report states that defendant was born on May 28, 1957.

_, P.J. BOREN _, J. DOI TODD